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Sunday, March 20, 2016

“Suo motu cognizance of appointment of Lokayukta and failure to constitute Meghalaya State Human Rights Commission”.= “Judges ought to be more learned than witty, more reverend than plausible, and more advised than confident. Above all things, integrity is their portion and proper virtue. … Let the Judges also remember that Solomon’s throne was supported by lions on both sides: let them be lions, but yet lions under the throne.” - “History will find greatness in Felix Frankfurter as a justice, not because of the results he reached but because of his attitude toward the process of decision. His guilding lights were detachment, rigorous integrity in dealing with the facts of a case, refusal to resort to unworthy means, no matter how noble the end, and dedication to the Court as an institution. Because he was human, Justice Frankfurter did not always live up to his own ideal. But he taught us the lesson that there is importance in the process.”= In State of Haryana v. State of Punjab & another[13], the Court emphasizing on the facet of pleading, has opined that:- “….. It is well established that constitutional invalidity (presumably that is what Punjab means when it uses the word “unsustainable”) of a statutory provision can be made either on the basis of legislative incompetence or because the statute is otherwise violative of the provisions of the Constitution. Neither the reason for the particular enactment nor the fact that the reason for the legislation has become redundant, would justify the striking down of the legislation or for holding that a statute or statutory provision is ultra vires. Yet these are the grounds pleaded in subparagraphs (i), (iv), (v), (vi) and (vii) to declare Section 14 invalid. Furthermore, merely saying that a particular provision is legislatively incompetent [ground (ii)] or discriminatory [ground (iii)] will not do. At least prima facie acceptable grounds in support have to be pleaded to sustain the challenge. In the absence of any such pleading the challenge to the constitutional validity of a statute or statutory provision is liable to be rejected in limine.” This being the position in law, the High Court could not have proceeded as if it was testing the validity of the provision and granted stay. The approach is totally fallacious. Having opined aforesaid, we have no option but to set aside that part of the order which deals with the provisions of the Act. We do not intend to express any opinion with regard to validity of any provision contained in the Act. We also do not think it condign to direct that the establishment under the said Act should become operational within any fixed time. Suffice to say at present that when the State Legislature has introduced the legislation to take steps as regards the institution, it shall be the endeavour of the executive to see that the office of the Lokayukta is in place. We say no more for the present.

                                 REPORTABLE


                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                       CIVIL APPEAL NO.  2987 OF 2016
             (@ Special Leave Petition (Civil) No. 6825 of 2016)


Joint Secretary, Political Department,    …Appellant(s)
Government of Meghalaya,
Main Secretariat, Shillong

                                  Versus

High Court of Meghalaya                   …Respondent(s)
through its Registrar,
Shillong
                               J U D G M E N T



Dipak Misra, J.

       New York Times,  in  the  Editorial,  “The  Frankfurter  Legacy,”  on
September 2, 1962, while stating about the greatness of  Felix  Frankfurter,
chose the following expression:-

“History will find greatness in Felix Frankfurter as a justice, not  because
of the results he reached but because of his attitude toward the process  of
decision.  His  guilding  lights  were  detachment,  rigorous  integrity  in
dealing with the facts of a case, refusal to resort to  unworthy  means,  no
matter how noble the end, and dedication to the  Court  as  an  institution.
Because he was human, Justice Frankfurter did not always live up to his  own
ideal.  But he taught  us  the  lesson  that  there  is  importance  in  the
process.”


2.    Almost two decades and two years back, the Court in Tata  Cellular  v.
Union of India[1]  referred,  with  approval,  the  following  passage  from
Neely, C.J.[2] :-
“82. … ‘I have very few illusions about my own limitations as  a  Judge  and
from those limitations I generalise  to  the  inherent  limitations  of  all
appellate courts reviewing rate cases.  It  must  be  remembered  that  this
Court sees approximately 1262 cases a year with five Judges.  I  am  not  an
accountant,  electrical  engineer,  financier,  banker,  stock  broker,   or
systems management analyst. It is the  height  of  folly  to  expect  Judges
intelligently to review a 5000 page record  addressing  the  intricacies  of
public utility operation.’ ”

3.    Regard being had to the directions issued  by  the  High  Court,  this
Court in Census Commissioner and others  v.  R.  Krishnamurthy[3]  commenced
the judgment in the following manner:-
      “The present appeal depicts and, in a way, sculpts the  non-acceptance
of  conceptual  limitation  in  every  human  sphere   including   that   of
adjudication. No adjudicator or a Judge can conceive the idea that  the  sky
is the limit or for that matter there is no  barrier  or  fetters  in  one’s
individual perception, for judicial vision  should  not  be  allowed  to  be
imprisoned and have  the  potentiality  to  cover  celestial  zones.  Be  it
ingeminated, refrain and restrain are the essential virtues in the arena  of
adjudication  because  they  guard  as  sentinel  so  that  virtuousness  is
constantly sustained. Not for nothing, centuries back Francis  Bacon[4]  had
to say thus:

“Judges ought to be more learned than witty, more reverend  than  plausible,
and more advised than  confident.  Above  all  things,  integrity  is  their
portion and proper virtue. … Let the Judges  also  remember  that  Solomon’s
throne was supported by lions on both sides: let  them  be  lions,  but  yet
lions under the throne.”

4.    The necessity has arisen again  for  reiteration  of  the  fundamental
principle to be adhered to by a Judge.  It is  because  the  order  impugned
herein  presents  a  sad  sad  scenario,  definitely   and   absolutely   an
impermissible and unacceptable one.
5.    Presently, to the facts of the case.   A  writ  petition  forming  the
subject matter of Writ Petition (Civil)  No.  319  of  2015  was  registered
under the caption “Suo motu  cognizance  of  appointment  of  Lokayukta  and
failure to constitute Meghalaya  State  Human  Rights  Commission”.  By  the
impugned order dated 14.12.2015, the High Court referred to  clause  (a)  of
sub-section (2) of Section 3 of  the  Meghalaya  Lokayukta  Act,  2014  (for
brevity, “the Act”) and proceeded to deal with the same.  In  that  context,
it has passed the following order:-

“The  provision  providing  such  eligibility  criterion  requires  judicial
scrutiny; for: the same eligibility cannot be provided for  the  Chairperson
and for a Member other than the Judicial Member of the  Lokayukta.  Besides,
the Central Lokpal  and  Lokayukta  Act  of  2013  does  not  prescribe  any
eligibility criteria for  Lokayukta  and  Up-Lokayukta.  That  apart,  other
States including State of Karnataka and State of Madhya Pradesh, looking  to
adjudicatory nature of work, has provided the eligibility  criteria  like  a
former Judge of Supreme Court; a Chief Justice of High Court or a  Judge  of
High Court, whereas, the eligibility  criteria  provided  in  the  Meghalaya
Lokayukta Act, 2014, inter alia includes a  criterion  whereby  an  eligible
non-Judicial person can also be appointed as the Chairperson.  Hence,  issue
notice.

      During the pendency of this writ petition, the portion of  clause  (a)
of sub-section (2) of Section 3, which reads as  “…  or  an  eminent  person
who fulfills the eligibility specified in clause (b)  of  sub-section  (3)”;
and consequently, “Sub-clause (b) of Sub-section (3) of Section  3”  insofar
as it provides for the  offending  criterion  for  the  appointment  of  the
Chairperson is hereby stayed.”

6.    After passing the said order, the High Court  has  proceeded  to  deal
with the appointment of the Chairperson and Members of the  Meghalaya  State
Human Rights Commission.  Dealing with the said facet, it  had  directed  as
follows:-
      “Now, coming to the appointment of the Chairperson and Members of  the
Meghalaya State Human Rights Commission, Hon’ble the Apex  Court  has,  vide
order dated 24.7.2015 in Crl.M.P. No. 16086 of 1997 in Crl.M.P. No. 4201  of
1997 (Shri Dilip K. Basu v. State of  West  Bengal  and  Ors)  has  directed
various States including the State of Meghalaya to set up  the  State  Human
Rights  Commission  within  six  months  and  to  fill  up  the  vacancy  of
Chairperson and Members of State Human Rights Commission  within  3  (three)
months from the date of order.  As  towards   compliance  of  the  aforesaid
directions of Hon’ble the  Apex  Court,  the  State  of  Meghalaya  has  not
initiated the process of appointment of the Chairperson and Members  of  the
State Human Rights Commission, we  direct  the  Chief  Secretary,  State  of
Meghalaya, to file affidavit showing the status of processing  of  the  file
for the appointment of the Chairperson and other Members of the State  Human
Rights Commission on the next date of hearing.  Besides,  we  also  make  it
clear, that the State shall specify the name  of  Hon’ble  former  Judge  of
Supreme Court and Hon’ble former Chief Justice of High Court, who have  been
offered the appointment  as  Chairperson.   The  State  shall  also  clearly
indicate as to who are the Judges  of  High  Court  and  other  non-Judicial
persons who have been offered the appointment as the Chairperson/Members  of
the Commission.  This information is required to  maintain  transparency  in
the process of  appointment on the posts as aforesaid.”



7.    Be it noted, the Division Bench has appointed two  counsel  as  Amicus
Curiae and directed the Registrar General to settle their  professional  fee
to be paid by the Department of Law, Government of Meghalaya.

8.    Mr. Ranjan Mukherjee learned counsel appearing for the  appellant  has
submitted that the State has  no  cavil  over  the  directions  relating  to
constitution  of  the  State  Human  Rights  Commission  by  appointment  of
Chairperson and Members. In course  of  hearing,  the  learned  counsel  has
submitted that the State shall appoint the Chairperson and  Members  of  the
State Human Rights Commission as per law by end of June, 2016.   That  being
the concession by Mr. Mukherjee on behalf of the State which, we  think,  is
absolutely fair, there is no need to advert to the said aspect. It  is  also
urged by Mr. Mukherjee that the State would not  have  challenged  the  said
part of the order as it understands its responsibility and further when  the
High Court has issued the direction, the State is  obliged  to  respect  the
same as it is  in  consonance  with  the  legal  position.  The  cavil,  Mr.
Mukherjee would put it, pertains to the observations made by the High  Court
and  the  stay  order  passed  in  respect  of  the  provision  relating  to
eligibility prescribed under the Act. It is urged  by  him  that  there  had
been no assail to the constitutional validity of  the  said  provision  and,
therefore, the High Court could  not  have  suo  motu  taken  up  the  same,
especially when the language employed is also  similar  to  the  Lokpal  and
Lokayuktas Act, 2013 passed by the Parliament.

9.    To appreciate the submission, it is necessary to note that Chapter  II
of the Act deals with Establishment  of  Lokayukta.   Sections  3  reads  as
follows:-

“Section  3.  Establishment  of  Lokayukta.—(1)  As  soon   as   after   the
commencement of this Act, there shall be  established,  by  notification  in
the Official Gazette, a body to be called the “Lokayukta”.

(2) The Lokayukta shall consist of-

(a) a Chairperson, who is or has been a Chief Justice of the High  Court  or
a Judge of the High Court or an eminent person who fulfils  the  eligibility
specified in clause (b) of sub-section (3); and

(b) such number of members, not exceeding four out  of  whom  fifty  percent
shall be Judicial Members.

(3) A person shall be eligible to be appointed,-

(a) as a Judicial Member if he is or has been a Judge of the High  Court  or
is eligible to be a Judge of the High Court;

(b) as a Member other  than  a  Judicial  Member,  if  he  is  a  person  of
impeccable integrity,  outstanding  ability  having  special  knowledge  and
expertise of not less than twenty-five years  in  the  matters  relating  to
anti-corruption policy, public administration, vigilance, finance  including
insurance and banking, law, and management.

(4) The Chairperson or a Member shall not be —

 (i) a member of Parliament or a member of the Legislature of any  State  or
Union territory;

(ii) a person convicted of any offence involving moral turpitude;

(iii) a person of less  than  forty-five  years  of  age,  on  the  date  of
assuming office as Chairperson or Member, as the case may be;

 (iv) a member of any Panchayat or Municipality or District Council;

(v) a person who has been removed or dismissed from service of the Union  or
a State, and shall not hold any office of trust or profit  (other  than  his
office as the Chairperson or a Member) or be connected  with  any  political
party or carry on any business or practice any profession  and  accordingly,
before he enters upon his office, a person appointed as the  Chairperson  or
a Member, as the case may be, shall, if –

(a) he holds any office of trust or profit, resign from such office; or

(b) he is carrying on any business, sever his connection  with  the  conduct
and management of such business; or

(c) he is practicing any profession, cease to practice such profession.”



10.   Section  4  deals  with  appointment  of  Chairperson  or  Members  on
recommendation of Selection Committee;  and  other  provisions  of  the  Act
dwell upon various other facets which we need not refer to.   Submission  of
Mr. Mukherjee is that the High Court could not have suo  motu  proceeded  to
deal with the appointment of Lokayukta and, in  any  case,  could  not  have
directed stay of the provision.

11.   There can be no doubt, the court can initiate suo motu proceedings  in
respect of certain issues which come within the domain of  public  interest.
In Budhadev Karmaskar (1) v. State of W.B.[5] the  Court,  while  dismissing
an appeal, observed thus:-

“14. Although we have dismissed this  appeal,  we  strongly  feel  that  the
Central and the State  Governments  through  Social  Welfare  Boards  should
prepare schemes for rehabilitation all over the country for  physically  and
sexually abused women commonly known as the ‘prostitutes’ as we are  of  the
view that the prostitutes also have a  right  to  live  with  dignity  under
Article 21 of the Constitution of India since they  are  also  human  beings
and their problems also need to be addressed.

15. As  already  observed  by  us,  a  woman  is  compelled  to  indulge  in
prostitution not for pleasure but because  of  abject  poverty.  If  such  a
woman  is  granted  opportunity  to  avail  some  technical  or   vocational
training, she would be able  to  earn  her  livelihood  by  such  vocational
training and skill instead of by selling her body.

16. Hence, we direct the  Central  and  the  State  Governments  to  prepare
schemes  for  giving  technical/vocational  training  to  sex  workers   and
sexually abused women in all cities in India. The schemes should mention  in
detail who will give the technical/vocational training and  in  what  manner
they can be rehabilitated and  settled  by  offering  them  employment.  For
instance, if a technical training is for some craft  like  sewing  garments,
etc. then some arrangements should also be made for providing a  market  for
such  garments,  otherwise  they  will  remain  unsold   and   unused,   and
consequently the woman will not be able to feed herself.”

      The purpose of the initiation in the aforesaid case is self-evident.

12.   Suo motu public interest litigation can  be  initiated  to  ameliorate
the conditions of a class  of  persons  whose  constitutional  or  otherwise
lawful rights are affected or not adequately looked  into.   The  Court  has
adopted the said tool so that persons in disadvantaged situation because  of
certain reasons – social, economic or socio-economic – are in a position  to
have access to the Court.  The Court appoints Amicus Curiae  to  assist  the
Court and also  expects  the  executive  to  respond  keeping  in  view  the
laudable exercise.

13.   In Ramlila Maidan Incident, In Re[6],  suo motu probe of incident  was
ordered by the Court against imposition of prohibitory order  at  night  and
hasty and forcible evacuation of public on the basis of  media  reports  and
CCTV camera footage.         In Nirmal Singh Kahlon v.  State  of  Punjab  &
others[7], the Court has held:-

“The High Court while entertaining the writ petition formed  a  prima  facie
opinion as regards the systematic commission of fraud. While dismissing  the
writ petition filed by the selected candidates,  it  initiated  a  suo  motu
public interest litigation.  It  was  entitled  to  do  so.  The  nature  of
jurisdiction exercised by the High Court, as is well  known,  in  a  private
interest litigation and  in  a  public  interest  litigation  is  different.
Whereas in the latter it is inquisitorial in nature, in  the  former  it  is
adversarial. In a public interest litigation, the court  need  not  strictly
follow the ordinary procedure. It may not only appoint committees  but  also
issue directions upon the State from time  to  time.  (See  Indian  Bank  v.
Godhara Nagrik Coop.  Credit  Society  Ltd.&  another[8]  and  Raju  Ramsing
Vasave v. Mahesh Deorao Bhivapurkar[9].)”



14.   In Raju Ramsing Vasave (supra), the Court has  observed  that  when  a
question is raised, this Court can take  cognizance  of  a  matter  of  such
grave importance suo motu. It may not treat the special leave petition as  a
public interest litigation, but, as a public law litigation.  It  is,  in  a
proceeding of that nature, permissible for the  Court  to  make  a  detailed
enquiry with regard to the broader aspects of the  matter  although  it  was
initiated at the instance of a person having a private  interest.  A  deeper
scrutiny can be made so as to enable the Court to find out as to  whether  a
party to a lis is guilty of commission of  fraud  on  the  Constitution.  If
such an enquiry subserves  the  greater  public  interest  and  has  a  far-
reaching  effect  on  the   society   the   Court   will   not   shirk   its
responsibilities from doing so.
15.   Be it noted, the constitutional courts can entertain letter  petitions
and deal with them as writ petitions.  But it will depend  upon  the  nature
of the issue sought  to  be  advanced.   There  cannot  be  uncontrolled  or
unguided exercise of epistolary jurisdiction.
16.   In the instant case, as is evident, the High Court  has  compared  the
provisions pertaining to appointment of Chairperson and  Members  under  the
Act with the provisions of other Acts  enacted  by  different  legislatures.
The legislature has passed the legislation in  its  wisdom.   There  was  no
challenge to the constitutional validity of the provisions of the Act.   The
suo motu petition was registered for giving effect to the  Act  by  bringing
the institutions into existence.  This  may  be  thought  of  in  very  rare
circumstances depending on the nature  of  legislation  and  the  collective
benefit but in that arena also the Court cannot raise the issue relating  to
any particular provision and seek explanation in  exercise  of  jurisdiction
under Article 226  of  the  Constitution.   In  the  case  at  hand,  as  is
manifest, the Division Bench of  the  High  Court  has,  with  an  erroneous
understanding of fundamental principle of law, scanned the  anatomy  of  the
provision and passed an order in relation to it as if  it  is  obnoxious  or
falls  foul  of  any  constitutional  provision.   The   same   is   clearly
impermissible.  A person aggrieved or with expanded concept of locus  standi
some one could have assailed the provisions.  But in that  event  there  are
certain requirements and need for certain compliances.
17.   In State of Uttar Pradesh v. Kartar Singh[10], while dealing with  the
constitutional validity of Rule 5 of the Food Adulteration Rules,  1955,  it
has been opined as follows:-
“….. if the  rule  has  to  be  struck  down  as  imposing  unreasonable  or
discriminatory standards, it could not  be  done  merely  on  any  a  priori
reasoning but only as a result of materials placed before the Court  by  way
of scientific analysis. It is obvious that this can be done  only  when  the
party invoking the protection of Art. 14 makes  averments  with  details  to
sustain such a plea and leads evidence to establish  his  allegations.  That
where a party seeks to impeach the validity of a rule made  by  a  competent
authority on the ground that the rules offend Art. 14 the burden is  on  him
to  plead  and  prove  the  infirmity  is  too  well  established  to   need
elaboration.”

18.    In  State  of  Andhra  Pradesh  and  another  v.  K.  Jayaraman   and
others[11], it has been ruled thus:-
“It is clear that,  if  there  had  been  an  averment,  on  behalf  of  the
petitioners, that the rule was invalid for violating Articles 14 and  16  of
the Constitution, relevant facts showing how it was discriminatory ought  to
have been set out.”

19.   In Union of India v. E.I.D. Parry (India) Ltd.[12], a             two-
Judge Bench of this Court has expressed thus:-
“… There was no pleading that the Rule upon which the  reliance  was  placed
by the respondent was ultra vires the Railways Act, 1890. In the absence  of
the pleading to that effect, the trial Court did  not  frame  any  issue  on
that question. The High Court of its own proceeded to consider the  validity
of the Rule and ultimately held that it  was  not  in  consonance  with  the
relevant provisions of the Railways Act, 1890 and consequently held that  it
was ultra vires. This view is contrary to the settled law…”

20.   In State of Haryana v. State of  Punjab  &  another[13],    the  Court
emphasizing on the facet of pleading, has opined that:-
“….. It is well established that constitutional invalidity (presumably  that
is what Punjab means when it uses the word “unsustainable”) of  a  statutory
provision can be made either on the basis  of  legislative  incompetence  or
because the  statute  is  otherwise  violative  of  the  provisions  of  the
Constitution. Neither the reason for the particular enactment nor  the  fact
that the reason for the legislation has become redundant, would justify  the
striking down of the legislation or for holding that a statute or  statutory
provision  is  ultra  vires.  Yet  these  are   the   grounds   pleaded   in
subparagraphs (i), (iv), (v), (vi) and (vii) to declare Section 14  invalid.
Furthermore, merely saying that  a  particular  provision  is  legislatively
incompetent [ground (ii)] or discriminatory [ground (iii)] will not  do.  At
least prima facie acceptable grounds  in  support  have  to  be  pleaded  to
sustain the challenge. In the absence of any such pleading the challenge  to
the constitutional validity of a statute or statutory  provision  is  liable
to be rejected in limine.”

21.   This being the position  in  law,  the  High  Court  could  not   have
proceeded as if it was testing the validity of  the  provision  and  granted
stay. The approach is totally  fallacious.    Having  opined  aforesaid,  we
have no option but to set aside that part of the order which deals with  the
provisions of the Act.  We do not intend to express any opinion with  regard
to validity of any provision contained in the Act.  We also do not think  it
condign to direct that the establishment under the said  Act  should  become
operational within any fixed time.  Suffice to say at present that when  the
State Legislature has introduced the legislation to take  steps  as  regards
the institution, it shall be the endeavour of the executive to see that  the
office of the Lokayukta is in place.  We say no more for the present.
22.   In view of the aforesaid analysis, the appeal is  partly  allowed  and
the direction pertaining to the stay of  the  provisions  of  the  Meghalaya
Lokayukta Act, 2014 is set aside. It is directed  that  State  Human  Rights
Commission shall become functional  by  end  of  June,  2016.   As  we  have
completely dealt with the matter, the writ petition initiated  by  the  High
Court shall be deemed to have been disposed of. There shall be no  order  as
to costs.
                                         .................................J.
                                             [Dipak Misra]


                                         .................................J.
                                  [Shiva Kirti Singh]
New Delhi;
March 18, 2016
-----------------------
[1]

      [2] (1994) 6 SCC 651
[3]

      [4] Bernard Schwartz in Administrative Law, 2nd Edn., p. 584
[5]

      [6] (2015) 2 SCC 796
[7]

      [8] Bacon, ”Essays: Of Judicature in I The Works of Francis Bacon”
(Montague, Basil, Esq ed., Philadelphia: A Hart, late Carey & Hart, 1852),
pp. 58-59.
[9]

      [10] (2011) 11 SCC 538
[11]

      [12] (2012) 5 SCC 1
[13]

      [14] (2009) 1 SCC 441
[15]

      [16] (2008) 12 SCC 541
[17]

      [18] (2008) 9 SCC 54
[19]

      [20]  AIR 1964 SC 1135
[21]

      [22] (1974) 2 SCC 738 :  AIR 1975 SC 633
[23]

      [24] (2000) 2 SCC 223 :  AIR 2000 SC 831
[25]

      [26]  (2004) 12 SCC 673


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